A lawsuit filed this week against the El Pomar Foundation accuses the nonprofit of violating state law by secretly lobbying members of then Gov. John Hickenlooper’s staff to kill a controversial proposal for a granite quarry south of Colorado Springs, reducing the property owner's potential income.
The lawsuit filed on behalf of the RMBC Group, the owner of the Hitch Rack Ranch that was the site of the proposed quarry, names as defendants the foundation, one of the largest nonprofits in the state, its chairman, William Hybl, and his son, Kyle Hybl, who succeeded his father as chief executive officer of the foundation. The lawsuit, filed Monday in El Paso County District Court, makes clear that the manager of RMBC Group, Cindi Allmendinger, a retired school teacher, still has hopes for a granite quarry at her family’s ranch.
The lawsuit alleges the Hybls used relationships they had with officials in the Hickenlooper administration to engage in a behind-the-scenes illegal lobbying campaign that flipped the stance of a key member of the state mining board in 2018. The filing of the complaint follows disclosures in The Gazette detailing the efforts by El Pomar officials to secretly press members of Hickenlooper’s staff seeking an introduction to Bob Randall, who played a crucial role in denying the permit application for the quarry.
It is the second time El Pomar and its officials have been accused of violating state law by secretly briefing Randall and communicating with him prior to his deciding vote as a member of the Colorado Mined Land Reclamation Board that rejected the permit application for the quarry. Last year Chicago-based Transit Mix Concrete, alleged in a private demand letter threatening a lawsuit that El Pomar’s backdoor lobbying subverted the legal hearing process and exerted undue influence on deliberations, according to people familiar with the matter. In response to that demand, El Pomar paid a confidential $15 million settlement to Transit Mix’s parent company, according to six people familiar with the negotiations.
El Pomar’s general counsel, Maureen Lawrence, declined to comment on the lawsuit.
"We will not comment on the details of RMBC's meritless filing," she said. "El Pomar Foundation was among hundreds of individuals and organizations in the region to oppose the development of an open quarry mine on the historic ranch."
In the past Lawrence has denied any wrongdoing by the Hybls or the foundation, stating that the foundation’s opposition to the quarry stemmed from the nonprofit’s “commitment to protect, enhance and promote awareness of the beautiful natural assets of the Pikes Peak region,” along with the fact the foundation had been gifted land adjacent to the Hitch Rack Ranch. She has not responded to questions about the earlier $15 million settlement El Pomar paid Transit Mix.
Randall also has denied that his contacts with the Hybls and Hickenlooper officials influenced his vote and has said his vote was strictly based on what was presented during the April 2018, hearing before the state mining board. Hickenlooper, now running for the seat held by U.S. Sen. Cory Gardner, did not weigh in on the state mining board’s decision to deny the permit for the quarry, according to previous statements from a campaign spokeswoman.
The lawsuit alleges that a meeting Randall had with Kyle Hybl more than three months before the mining board vote, gave Hybl a chance to press El Pomar's concerns over the quarry. That meeting violated the state’s prohibition against state agency boards considering ex parte communications — or communications from one party without the other party being present, the lawsuit asserts.
About a month before the mining board hearing, Randall also received an additional ex parte communication in the form of an email from Hickenlooper’s chief legal counsel, Jacki Cooper Melmed, the lawsuit alleges. Melmed in March forwarded to Randall an email from Kyle Hybl detailing his concerns about the quarry.
Melmed, who remains chief legal counsel in Gov. Jared Polis's administration, has declined to comment.
The lawsuit contends that the ex parte communications influenced Randall’s stance and persuaded him to buck the recommendation of his own staff in the state’s Division of Reclamation and Mining, lodged in the state department of natural resources that he headed at the time.
The lawsuit references the earlier $15 million settlement El Pomar paid to Transit Mix’s parent company, Chicago-based Continental Materials in 2019. The lawsuit states that in exchange for the settlement, Transit Mix agreed to refrain from further pursuing the permit for the quarry and to drop its litigation efforts. The lawsuit also alleges that the $15 million settlement came with a condition, alleging that El Pomar used the settlement to tie up Transit Mix's rights to the minerals under the Hitch Rack Ranch that Transit Mix had received from the State Land Board.
“Upon information and belief, the El Pomar and Transit Mix agreement also contains terms requiring that Transit Mix assign its mineral lease and/or mineral rights for the (Hitch Rack Ranch) property with the State Land Board to El Pomar upon completion of its required reclamation obligation,” the lawsuit states.
In February 2019, Continental Materials sold Transit Mix to Aggregate Industries-WCR, which has not sought another permit to mine Hitch Rack Ranch.
The lawsuit seeks a court order barring El Pomar and the Hybls from “acquiring or exercising any control over any mineral lease and/or mineral rights” on the ranch property and barring them from “any future opposition to mining permit applications" at the ranch property. The complaint also seeks liability for unjust enrichment, intentional interference with a prospective business relationship and intentional interference of a contract.